chapter  33
11 Pages

Measure of damages for infringement in Malaysia

Lost profits (~profit margin) times loss of sales
WithAinee Adam

The respondent was found liable in an action for infringement and passing off of the appellant’s/claimant’s registered trademark “HAITOP” for items including travel and hand luggage, school bags and purses. The respondent subsequently appealed to the High Court against the sum and submitted that the quantum of damages should be based on loss of net profit and not loss of sales. The High Court subsequently found the respondent liable for infringing the claimant’s registered trademark and passing off and ordered for an enquiry to assess the amount of damages to be awarded to the claimant. The respondent then appealed to the High Court against this decision. It claimed that the Senior Assistant Registrar had erred by accepting loss of sales as loss of profit incurred by the claimant. Agreeing with the respondent’s contention, the High Court stated that the loss suffered by the claimant should be limited to the loss of net profit for the HAITOP bags.